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HomeMy WebLinkAboutCalifornia State Water Resources Control Board - Proposition 1 Groundwater Planning Grant 123-Trichloropropane Mitigation Feasibility Study Agreement No D1712521 PREP 1 $!Y(RHcIE$braUMD¢2E(gM1E.EE WATER BOND 2014 PROPOSITION 1 GROUNDWATER CITY OF FRESNO AND CALIFORNIA STATE WATER RESOURCES CONTROL BOARD CALEFORNIA Water ]Boards PLANNING GRANT GROUNDWATER PLANNING 123-TRICHLOROPROPANE MITIGATION FEASIBILITY STUDY AGREEMENT NO. D1712521 GRANT FUNDS: $891,500 ELIGIBLE START DATE: JANUARY 2, 2018 WORK COMPLETION DATE: DECEMBER 31, 2019 FINAL DISBURSEMENT REQUEST DATE: JANUARY 31, 2020 RECORDS RETENTION TERM END DATE: DECEMBER 31, 2055 City of Fresno Agreement No. D1712521 Page 2 of 28 WHEREAS, 1. The State Water Board is authorized to provide funding under this Agreement pursuant to the following: • Proposition 1 Groundwater- Sections 79770-79774 of the Water Code (Prop 1) 2. The State Water Board determines eligibility for financial assistance, determines a reasonable schedule for providing financial assistance, establishes compliance with Prop 1, and establishes the terms and conditions of a funding agreement. 3. The Recipient has applied to the State Water Board for funding for the Project described in Exhibit A of this Agreement, and the State Water Board has selected the application for funding through a competitive process. 4. The State Water Board proposes to assist in funding the costs of the Project, and the Recipient desires to participate as a recipient of financial assistance from the State Water Board, upon the terms and conditions set forth in this Agreement, all pursuant to Prop 1. NOW, THEREFORE, in consideration of the premises, and of the mutual representations, covenants and agreements set forth herein, the State Water Board and the Recipient, each binding itself, its successors and assigns, do mutually promise, covenant, and agree as follows: Subject to the satisfaction of any conditions precedent to this Agreement, this Agreement shall become effective upon the signature of both the Recipient and the State Water Board. Upon execution, the term of the Agreement shall begin on the Eligible Start Date and extend through the Records Retention Term End Date. 1. Definitions Unless otherwise specified, each capitalized term used in this Agreement has the following meaning: "Agreement" means this Grant, including all exhibits and attachments hereto. "Authorized Representative" means the duly appointed representative of the Recipient as set forth in the certified original of the Recipient's authorizing resolution that designates the Authorized Representative by title. "Days" means calendar days unless otherwise expressly indicated. "Disbursement Period" means the period during which Grant Funds may be disbursed. "Disbursement Request" means the form used by the Recipient to document Match Funds and request reimbursement of Project Costs. "Division" means the Division of Financial Assistance of the State Water Board or any other segment of the State Water Board authorized to administer the funding program(s) set forth in this Agreement. "Eligible Start Date" means the date set forth in Exhibit B, establishing the date on or after which reimbursable Project Costs may be incurred and eligible for reimbursement hereunder. "Final Disbursement Request Date" means the date established in Exhibit B, after which date no further Grant Funds disbursements may be requested. City of Fresno Agreement No. D1712521 Page 3 of 28 "Fiscal Year" means the period of twelve (12) months terminating on June 30 of any year. "Force Account" means the use of the Recipient's own employees or resources for the Project. "GAAP" means generally accepted accounting principles, as issued by the Governmental Accounting Standards Board. "Grant Contact" means the employee of the Recipient who has been delegated by the Project Director to oversee the day-to-day activities of the Project. The Grant Contact is set forth in Section 2 of this Agreement. "Grant Funds" means funds provided by the State Water Board towards eligible reimbursable Project Costs. "Grant Manager" means the person designated by the State Water Board to manage performance of the Agreement. The Grant Manager is set forth in Section 2 of this Agreement. "Guidelines" means the State Water Board's"Proposition 1 Groundwater Grant Program Guidelines," as amended from time to time. "Indirect Costs" means those costs that are incurred for a common or joint purpose benefiting more than one cost objective and are not readily assignable to the Project(i.e., costs that are not directly related to the Project). Examples of Indirect Costs include, but are not limited to: central service costs; general administration of the Recipient; non-project-specific accounting and personnel services performed within the Recipient organization; depreciation or use allowances on buildings and equipment; the costs of operating and maintaining non-project-specific facilities; tuition and conference fees; generic overhead or markup; and taxes. "Match Funds" means funds provided by the Recipient towards the Project Costs incurred after November 4, 2014. "Party Contact" means, for the Recipient, the Authorized Representative of the Recipient or any designee of the Authorized Representative, and, for the State Water Board, the Grant Manager, or the Program Analyst. "Project" means the planning project as described in Exhibit A and in the documents incorporated by reference. "Project Completion" means, as determined by the Division, that the Project is complete to the reasonable satisfaction of the Division. "Project Costs" means the incurred costs of the Recipient which are eligible under this Agreement, which are allowable costs as defined under the Guidelines, and which are reasonable, necessary and allocable by the Recipient to the Project under GAAP. "Project Director" means an employee of the Recipient designated by the Authorized Representative to be responsible for the overall management of the administrative and technical aspects of the executed Agreement. The Project Director is set forth in this Agreement. "Recipient" means City of Fresno. "Records Retention Term End Date" means the last date that the Recipient is obligated to maintain records pursuant to Section C-29 of this Agreement. "Regional Water Quality Control Board" or"Regional Water Board" means the appropriate Regional Water Quality Control Board. City of Fresno Agreement No. D1712521 Page 4 of 28 "State" means State of California. "State Water Board" means the California State Water Resources Control Board, an administrative and regulatory agency of the State of California. "Work Completion" means the Recipient's submittal of all work set forth under Exhibit A for review and approval by the Division. The Division may require corrective work to be performed prior to Project Completion. Any work occurring after the Work Completion Date will not be reimbursed under this Agreement. "Work Completion Date" means the date set forth in Exhibit A that is the last date on which Project Costs may be incurred under this Agreement. "Year" means calendar year unless otherwise expressly indicated. 2. Party Contacts The Party Contacts during the term of this Agreement are: State Water Board Cit of Fresno: Section: Division of Financial Assistance Section: Name: Paul Murphey, Grant Manager Name: Matthew Bullis, Project Director Address: 1001 1 Street, 17th Floor Address: 1910 E University Avenue City, State, Sacramento, CA City, State, Fresno, CA Zip: 95814 Zip: 93703 Phone: 916 319-8257 Phone: 559 621-1632 Fax: 916 341-5707 Fax: E-mail: Pau#.Mur he waterboards.ca. ov E-mail: Matthew.Bull is fresno.gov Direct inquiries to: State Water Board City of Fresno. Section: Division of Financial Assistance Section: Name: Melissa Miller, Program Analyst Name: Matthew Bullis. Grant Contact Address: 1001 1 Street, 17th Floor Address: 1910 E University Avenue City, State, Sacramento, CA City, State, Fresno, CA Zip: 95814 Zip: 93703 Phone: 916 993-3872 Phone: 559 621-1632 Fax: 916) 341-5296 Fax: E-mail: Melissa.Miller waterboards.ca. ov E-mail. Matthew.Bullis fresno. ov The Recipient may change its Project Director upon written notice to the Grant Manager, which notice shall be accompanied by authorization from the Recipient's Authorized Representative. The State Water Board will notify the Project Director of any changes to its Party Contacts. 3. Exhibits and Appendices Incorporated The following exhibits and appendices to this Agreement, including any amendments and supplements hereto, are hereby incorporated herein and made a part of this Agreement: EXHIBIT A—SCOPE OF WORK EXHIBIT B—FUNDING PROVISIONS EXHIBIT C—STANDARD TERMS AND CONDITIONS EXHIBIT D—SPECIAL CONDITIONS City of Fresno Agreement No. D1712521 Page 5 of 28 4. Representations, Warranties, and Commitments The Recipient represents, warrants, and commits to the following as of the Eligible Start Date set forth in Exhibit B and continuing thereafter for the term of the Agreement: (a) General Commitments. The Recipient accepts and agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents, and to fulfill all assurances, declarations, representations, and commitments made by the Recipient in its application, accompanying documents, and communications filed in support of its request for financial assistance and throughout the term of this Agreement. (b) Authorization and Validity. The execution and delivery of this Agreement, including all incorporated documents, has been duly authorized. This Agreement constitutes a valid and binding obligation of the Recipient, enforceable in accordance with its terms, except as such enforcement may be limited by law. (c) No Violations. The execution, delivery, and performance by Recipient of this Agreement, including all incorporated documents, do not violate any provision of any law or regulation in effect as of the Eligible Start Date set forth in Exhibit B, or result in any breach or default under any contract, obligation, indenture, or other instrument to which Recipient is a party or by which Recipient is bound as of the eligible Start Date set forth in Exhibit B. (d) No Litigation. There are no pending or, to Recipient's knowledge, threatened actions, claims, investigations, suits, or proceedings before any governmental authority, court, or administrative agency which affect the financial condition or operations of the Recipient, and/or the Project. (e) Solvency. None of the transactions contemplated by this Agreement will be or have been made with an actual intent to hinder, delay, or defraud any present or future creditors of Recipient. As of the Eligible Start Date set forth in Exhibit B, Recipient is solvent and will not be rendered insolvent by the transactions contemplated by this Agreement. Recipient is able to pay its debts as they become due. (f) Legal Status and Eligibility. Recipient is duly organized and existing and in good standing under the laws of the State of California, and will remain so during the term of this Agreement. Recipient shall at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority. Recipient shall maintain its eligibility for funding under this Agreement for the term of this Agreement. (g) Good Standing. The Recipient is currently in compliance with the state requirements set forth in Exhibit C. Within the preceding ten years, the Recipient has not failed to demonstrate compliance with previous state audit disallowances. (h) Insurance. Recipient maintains sufficient insurance coverage considering the scope of this Agreement, including, for example, but not necessarily limited to, General Liability, Automobile Liability, Worker's Compensation and Employer's Liability, Professional Liability, as applicable. 5. Project Completion The Recipient shall expeditiously proceed with and complete the Project in accordance with this Agreement. 6. Notice (a) The Recipient shall notify the Division in writing within five (5)working days of the occurrence of any of the following: f City of Fresno Agreement No. D1712521 Page 6 of 28 (1) Bankruptcy, insolvency, receivership or similar event of the Recipient; (2) Actions taken pursuant to state law in anticipation of filing for bankruptcy; (b) The Recipient shall notify the Division within ten (10)working days of any litigation pending or threatened against Recipient regarding its continued existence, consideration of dissolution, or disincorporation; (c) The Recipient shall notify the Division promptly of the following: (1) Any proposed change in scope of the Project. Under no circumstances may the Recipient make changes to the scope of the Project without receiving prior review and approval by the Division. Most changes will require an amendment to this Agreement; (2) Cessation of work on the Project where such cessation of work is expected to or does extend for a period of thirty (30) days or more; (3) Any circumstance, combination of circumstances, or condition, which is expected to or does delay Work Completion; (4) Any monitoring activities such that the State Water Board Division of Drinking Water and/or Regional Water Quality Control Board staff may observe and document such activities; (5) Any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by state representatives with at least ten (10)working days' notice to the Division; or (6) Work Completion, and Project Completion. 7. Project Access The Recipient shall ensure that the State Water Board, the Governor of the State, or any authorized representative of the foregoing, will have safe and suitable access to the Project site at all reasonable times during Project construction and thereafter for the term of the obligation. 8. No Obligation of the State; State Budget Act Contingency Any obligation of the State Water Board herein contained shall not be an obligation, debt, or liability of the State and any such obligation shall be payable solely out of the moneys appropriated by the State Legislature to the State Water Board from the special fund associated with this Agreement. If the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no force and effect. This provision shall be construed as a condition precedent to the obligation of the State Water Board to make any payments under this Agreement. In this event, the State shall have no liability to pay any funds whatsoever to Recipient or to furnish any other considerations under this Agreement and Recipient shall not be obligated to perform any provisions of this Agreement. Nothing in this Agreement shall be construed to provide the Recipient with a right of priority for payment over any other recipient. If this Agreement's funding for any Fiscal Year is reduced or deleted by the Budget Act, by Executive Order, or by order of the Department of Finance, the State shall have the option to either cancel this Agreement with no liability accruing to the State, or offer an Agreement amendment to the Recipient to reflect the reduced amount. City of Fresno Agreement No. SWRCBOOOOOOOOOOD181252100 Page 7 of 28 IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto. CITY OF FRESNO: APPROVED AS TO FORM CITY,ATTRNEY'S BY By: S�"(-wf) TY CITY ATTO NEY Name: Michael Carbajal Title: Director of Public Utilities ATTEST: Date. II II&h X YVONNE SPENCE, CMC CITY CLE zj//S By puty STATE WATER RESOURCES CONTROL BOARD: By. ■ Name: Leslie S. Laudon Title: Deputy Director Division of Financial Assistance Date: /V/e/ City of Fresno Agreement No. D1712521 Page 8 of 28 EXHIBIT A—SCOPE OF WORK A-1. Completion Dates The Work Completion Date is established as December 31, 2019. Work occurring after the Work Completion Date, including corrective actions, is not eligible for reimbursement with Grant Funds and cannot be paid for using Match Funds. A-2. Purpose This grant is for the benefit of the,Recipient. This grant is for the purpose of conducting a Feasibility Study (FS) to evaluate alternatives for prevention or cleanup of 1,2,3-trichloropropane(TCP) contamination in groundwater that serves or has served as a source of drinking water for the Recipient. Design plans consistent with the preferred alternative identified in the FS will also be completed. The Recipient's receipt of funding under this Agreement is not a commitment to and does not obligate the State Water Board to provide funding for any eventual construction/implementation project. A-3. Project-Specific Scope of Work The Recipient agrees to do the following: 1. Project Management 1.1 Provide all technical and administrative services as needed for Project completion; monitor, supervise, and review all work performed; and coordinate budgeting and scheduling to ensure the Project is completed within budget, on schedule, and in accordance with approved procedures, applicable laws, and regulations. 1.2 Notify the Grant Manager at least fifteen (15) working days in advance of upcoming meetings, workshops, trainings and fieldwork or construction activities. 1.3 Develop and update appropriately a detailed Project schedule, including key Project milestones, and submit to the Grant Manager. 1.4 Conduct periodic and final site visits with the Grant Manager and other staff designated by the Division. 1.5 Conduct pre-, during, and post-activity photo monitoring at the Project site and submit to the Grant Manager. 2. General Compliance Requirements/Project Effectiveness and Performance 2.1 Submit Global Positioning System (GPS) information for project site(s) and monitoring location(s)for this Project. Submittal requirements for GPS data are available at: http://www.wat_erboards.ca.gaylwater issues/programs/grants foanslgranl infold_o cs/gps.pdf. 2.2 Prepare and upload all groundwater analytical data collected and analyzed as part of the Feasibility Study to the State Water Board's GeoTracker/LAMA system in Electronic Deliverable Format(EDF). Locational information for these sampling points shall be submitted using the Geo_XY file. Contact the Grant Manager to obtain a Global ID prior to collecting samples. City of Fresno Agreement No. D1712521 Page 9 of 28 3. Permitting 3.1 Obtain all public agency approvals, entitlements, or permits required for Project implementation before field work begins. If the Project is carried out on lands not owned by the Recipient, the Recipient must obtain adequate rights of way for the useful life of the Project. Submit a list and signed copies of such approvals, entitlements or permits to the Grant Manager. 4. Technical Advisory Committee 4.1 Establish a Technical Advisory Committee(TAC) comprised of the Division, the State Water Board Division of Drinking Water(DDW), the Regional Water Board, and the Department of Toxic Substance Control (as needed). Submit the final list of TAC members, their roles and responsibilities, and affiliations to the Grant Manager for approval. 4.2 Convene a kickoff meeting to establish TAC goals and objectives, formalize roles, and create a schedule for future meetings. Submit a summary of the kickoff I meeting to the Grant Manager. 4.3 Conduct additional TAC meetings in accordance with the schedule developed in Item 4.2 and submit the agendas, meeting minutes, and sign-in sheets for each meeting to the Grant Manager. l 5. Site Assessment/Feasibility Study Report 5.1 Prepare a Site Assessment/FS Report that considers a minimum of thirty (30) existing well sites to evaluate alternatives to address TCP contamination. Submit the report to the TAC for comment and the Grant Manager for approval. The Site Assessment/FS Report must include, at a minimum, the following: 5.1.1 Summary of the Project area's history, geology, hydrogeology, local land use, previous investigations, and remedial actions. 5.1.2 Summary of field work activities completed, methods used, and supporting documentation. 5.1.3 Summary of the nature and extent of constituents of concern in the groundwater including types of contaminants, concentrations detected, and vertical and lateral extent of the contamination. 5.1.4 Summary of the contaminant properties and transport based on soil and aquifer properties. 5.1.5 Proposed remedial action objectives that the future proposed implementation project will achieve. 5.1.6 Description of the remedial action alternatives that will be evaluated. 5.1.7 Evaluation of the remedial action alternatives. 5.1.8 Estimated total life cycle costs and estimated schedule for each alternative evaluated. 5.1.9 Description of the rationale for selecting the preferred alternative. City of Fresno Agreement No. D1712521 Page 10 of 28 6. Project Design 6.1 Develop a schematic design for a minimum of three(3)well sites, including surveying and utility coordination, consistent with the preferred alternative identified in Item 5.1. 6.1.1 Prepare a Design Parameter report that includes, at a minimum, a description of major site features, a schematic design plan of the proposed improvements, and remedial design parameters. Submit the report to the TAC for review and the Grant Manager for approval. 6.2 Prepare the sixty percent(60%) design plans and specifications consistent with Item 6.1.1. Submit the sixty percent(60%) design plans and specifications to the TAC for review and the Grant Manager for approval. 6.3 Prepare the ninety percent(90%) design plans and specifications and include a summary of changes from the sixty percent(60%) design plans and specifications in Item 6.2. Submit the ninety percent(90%) design plans and specifications and summary of changes to the TAC for review and the Grant Manager for approval. 6.4 Prepare the one hundred percent(100%) design plans and specifications and include a summary of changes from the ninety percent(90%) design plans and specifications in Item 6.3. Submit the one hundred percent(100%) design plans and specifications and summary of changes to the TAC for review and the Grant Manager for approval. 7. Public Outreach 7.1 Develop outreach materials including flyers, posters, brochures, and advertisements, and update the website and associated social media web pages to include Project progress and outcomes. Provide copies of the outreach materials and web links to the Grant Manager. 7.2 Conduct a minimum of one (1) public workshop, inviting relevant non-governmental organizations and disadvantaged community representatives, prior to finalization of the FS in Item 5.1. Submit the workshop materials, sign-in sheet(s), and photo documentation of the workshop to the Grant Manager. A-4. Disclosure The Recipient shall include the following disclosure statement in any document, written report, or brochure prepared in whole or in part pursuant to this Agreement: "Funding has been provided in full or in part through an agreement with the State Water Resources Control Board using funds from Proposition 1. The contents of this document do not necessarily reflect the views and policies of the foregoing, nor does mention of trade names or commercial products constitute endorsement or recommendation for use." A-5. Reporting (a) Progress Reports. The Recipient shall submit quarterly progress reports, using a format provided by the Grant Manager, within forty-five (45)days following the end of the calendar quarter(March, June, September, and December)to the Grant Manager. Progress Reports shall provide a brief description of activities that have occurred, milestones achieved, monitoring results (if applicable), City of Fresno Agreement No. D1712521 Page 11 of 28 and any problems encountered in the performance of the work under this Agreement during the applicable reporting period. Reporting shall be required even if no grant-related activities occurred during the reporting period. The Recipient shall document all activities and expenditures in progress reports, including work performed by contractors. (b) As Needed Information or Reports. The Recipient agrees to provide expeditiously, during the term of this Agreement, such reports, data, and information as may be reasonably required by the Division, including but not limited to material necessary or appropriate for evaluation of the funding program or to fulfill any reporting requirements of the state or federal government. (c) Final Reports. At the conclusion of the Project, the Recipient must submit the following to the Grant Manager: i (1) Draft Final Project Report. Prepare and submit to the Grant Manager, for review and comment, a draft Final Project Report in a format provided by the Grant Manager. (2) Final Project Report. Prepare a Final Project Report that addresses, to the extent feasible, comments made by the Grant Manager on the draft Final Project Report. Submit one (1) reproducible master copy and an electronic copy of the final. Upload an electronic copy of the final report in pdf format to the FAAST system. (3) Final Project Summary. Prepare a brief summary of the information contained in the Final Project Report, using a format provided by the Grant Manager, and include accomplishments, recommendations, and lessons learned, as appropriate. Upload an electronic copy of the Final Project Summary in pdf format to the Financial Assistance Application Submittal Tool (FAAST) system. City of Fresno Agreement No. D1712521 Page 12 of 28 A-6. Submittal Schedule. Failure to provide items by the due dates indicated in the table below may constitute a material violation of this Agreement. However, the dates in the"Estimated Due Date" column of this table may be adjusted as necessary during the Disbursement Period with Grant Manager approval. All work or submittals must be achieved with relevant submittals approved by the Division prior to the Work Completion Date, and the final Disbursement Request submitted, prior to the Final Disbursement Request Date set forth in Exhibit B. As applicable for specific submittals, the Recipient shall plan adequate time to solicit, receive, and address TAC comments prior to submitting the final submittal. ITEM DESCRIPTION OF SUBMITTAL CRITICAL DUE ESTIMATED DUE DATE DATE EXHIBIT A-3 PROJECT-SPECIFIC SCOPE OF WORK 1. Project Management 1.2 Notification of Upcoming Meetings, Workshops, 15 Working Days and Trainings Prior to Meetings 1.3 Detailed Project Schedule October 31, 2018 1.4 Periodic and Final Site Visits As Needed 1.5 Photo Monitoring Ongoing 2. General Compliance Requirements/Project Effectiveness and Performance 2.1 J GPS Information October 31, 2018 2.4 ' GeoTracker/Gama Data Reporting Ongoing 3. Permitting 3.1 List of Approvals, Entitlements or Permits Ongoing 4. Technical Advisory Committee 4.1 List of TAC Members, Roles and Responsibilities, October 31, 2018 and Affiliations 4.2 Summary of TAC Kickoff Meeting November 2018 4.3 Periodic TAC Meeting Agendas, Minutes, and As Needed Sign-in Sheets 5. Site Assessment/Feasibility Study Report 5.1 Site Assess ment/Feasi bi I ity Study Report January 2019 6. Project Design 6.1.1 Design Parameter Report March 2019 6.2 60% Design and Specifications May 2019 6.3 90% Design and Specifications July 2019 6.4 100% Design and Specifications September 2019 ... ......... ..._....... _l City of Fresno Agreement No. D1712521 Page 13 of 28 ITEM DESCRIPTION OF SUBMITTAL CRITICAL DUE ESTIMATED DUE DATE DATE EXHIBIT A-3 PROJECT-SPECIFIC SCOPE OF WORK 7. Public Outreach 7.1 Outreach Materials Ongoing 7.2 Workshop Materials, Sign-In Sheets, and Photo Ongoing Documentation EXHIBIT A-5 REPORTING (a) Progress Reports Quarterly (b) As Needed Information or Reports As Needed (c) Final Reports (c)(1) Draft Final Project Report October 31, 2019 (c)(2) Final Project Report November 30, 2019 (c)(3) Final Project Summary Before Final Disbursement Request EXHIBIT B—FUNDING PROVISIONS I 4 (b) Final Disbursement Request January 31, 2020 9 (b)(4) Disbursement Requests I Quarterly City of Fresno Agreement No. D1712521 Page 14 of 28 EXHIBIT B—FUNDING PROVISIONS B-1. Project Funding Subject to the terms of this Agreement, the State Water Board agrees to provide Grant Funds in the amount of up to EIGHT HUNDRED NINETY-ONE THOUSAND FIVE HUNDRED DOLLARS ($891,500). B-2. Match Funds (a) The Recipient agrees to provide Match Funds in the amount of NINETY-NINE THOUSAND ONE HUNDRED DOLLARS ($99,100). (b) This Match Funds amount is based on the budget, funding sources, and amounts submitted by the Recipient in its application and during the negotiation of this Agreement. Any Match Funds changes or adjustments requested by the Recipient must be approved, in advance and in writing, by the Grant Manager and may require an amendment to this Agreement. (c) Only expenses that would be considered eligible under the Guidelines will be counted towards the Recipient's Match Funds. (d) Any costs incurred prior to the adoption of Proposition 1 on November 4, 2014, will not count towards the Recipient's Match Funds. s (e) If, at Work Completion, the Recipient has provided Match Funds in an amount that is less than the Match Funds amount set forth above, the State Water Board may proportionately reduce the Grant Funds amount and/or Recipient's Match Funds amount, upon approval of the Deputy Director of the Division, provided the reduced amount(s) satisfy statutory requirements and Guidelines. B-3. Estimated Reasonable Total Project Cost The estimated reasonable cost of the total Project is NINE HUNDRED NINETY THOUSAND SIX HUNDRED DOLLARS ($990,600). B-4. Funding Dates (a) The Eligible Start Date is JANUARY 2, 2018. Otherwise eligible costs incurred prior to this date will not be reimbursed. (b) The Final Disbursement Request Date is JANUARY 31, 2020. The Deputy Director of the Division may extend this date for good cause. Extensions may require an amendment to this Agreement. All disbursement requests must be submitted to the Division such that they are received prior to this date. Late disbursement requests will not be honored, and remaining amounts will be deobligated. B-5. Funding Conditions and Exclusions (a) This Agreement reflects planning funding only. If the Recipient desires implementation/construction funding, the Recipient must apply for implementation/construction funding, and execute an implementation/construction funding agreement. Costs associated with the implementation/construction phase of the possible eventual implementation/construction project are not eligible for reimbursement under this Agreement. City of Fresno Agreement No. D1712521 Page 15 of 28 (b) The State Water Board's disbursement of funds hereunder is contingent on the Recipient's compliance with the terms and conditions of this Agreement. (c) Grant Funds may not be used for any Indirect Costs. Any Disbursement Request submitted including Indirect Costs will cause that Disbursement Request, in its entirety, to be disputed and will not be paid until the dispute is resolved. This prohibition applies to the Recipient and any subcontract or sub-agreement for work on the Project that will be reimbursed with Grant Funds pursuant to this Agreement. (Gov. Code, § 16727.) B-6. Budget Summary LINE ITEM GRANT MATCH TOTAL FUNDS FUNDS * PROJECT COSTS Direct Project Administration Costs $30,015 $3,335 $33,350 Planning/Design/Engineering/ $861,485 I $95,765 $957,250 Environmental Construction/implementation $0 $0 $0 Monitoring/ erformance $0 $0 $0 TOTAL $891,500 $99,100 $990,600 *Match reduced because the Project directly benefits a Disadvantaged Community- B-7. Budget Flexibility (a) Subject to the prior review and approval of the Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent(15%) of the Grant Funds, including any amendment(s)thereto. Line item adjustments in excess of fifteen percent (15%) require an Agreement amendment. If the detailed budget includes an amount for the Recipient's personnel costs, that amount is based on the hours, classifications, and rates submitted by the Recipient in its application. Any changes to the hours, classifications, and rates must be approved, in advance and in writing, by the Grant Manager. (b) The Recipient may submit a request for an adjustment in writing to the Grant Manager. Such adjustment may not increase or decrease the total grant amount. The Recipient shall submit a copy of the original Agreement budget sheet reflecting the requested changes and shall note proposed changes by striking out the original amount(s) followed with proposed change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item shall require a formal amendment. The Division may also propose budget adjustments. (c) The sum of adjusted line items shall not exceed the total budget amount. B-8. Amounts Payable by the Recipient The Recipient agrees to pay any and all costs connected with the Project including, without limitation, any and all Project Costs. If the Grant Funds are not sufficient to pay the Project Costs in full, the Recipient shall nonetheless complete the Project and pay that portion of the Project Costs in excess of available Grant Funds, and shall not be entitled to any reimbursement therefor from the State Water Board. City of Fresno Agreement No. D1712521 Page 16 of 28 B-9. Disbursement of Grant Funds; Availability of Grant Funds (a) The State Water Board's obligation to disburse Grant Funds is contingent upon the availability of sufficient funds to permit the disbursements provided for herein. If sufficient funds are not available for any reason, including but not limited to failure of the State government to appropriate funds necessary for disbursement of Grant Funds, the State Water Board shall not be obligated to make any disbursements to the Recipient under this Agreement. This provision shall be construed as a condition precedent to the obligation of the State Water Board to make any disbursements under this Agreement. Nothing in this Agreement shall be construed to provide the Recipient with a right of priority for disbursement over any other recipient. If any disbursements due the Recipient under this Agreement are deferred because sufficient funds are unavailable, it is the intention of the State Water Board that such disbursement will be made to the Recipient when sufficient funds do become available, but this intention is not binding. If this Agreement's funding for any fiscal year is reduced or deleted by the Budget Act, by Executive Order, or by order of the Department of Finance, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an amendment to the Recipient to reflect the reduced amount. (b) Except as may be otherwise provided in this Agreement, disbursement of Grant Funds will be made as follows: (1) Upon execution and delivery of this Agreement, the Recipient may submit a Disbursement Request for eligible Project Costs as well as to support Match Funds as specified in this Exhibit from the Project Costs through submission to the State Water Board using the Disbursement Request form provided by the Grant Manager. (2) Disbursement Requests shall contain the following information: a. The date of the request; b. The time period covered by the request, i.e., the term"from"and "to"; c. The total amount requested; d. Documentation of Match Funds used; e. Original signature and date(in ink) of the Recipient's Project Director or his/her designee; and, f. The Final Disbursement Request shall be clearly marked "FINAL DISBURSEMENT REQUEST" and shall be submitted NO LATER THAN JANUARY 31, 2020. (3) Disbursement Requests must be itemized based on the line items specified in the budget in this Exhibit. Disbursement Requests must be complete, signed by the Recipient's Project Director or his/her designee, and addressed to the Grant Manager as set forth in the Party Contacts section of this Agreement. Disbursement Requests submitted in any other format than the one provided by the State Water Board will cause a Disbursement Request to be disputed. In the event of such a dispute, the Grant Manager will notify the Recipient. Payment will not be made until the dispute is resolved and a corrected Disbursement Request submitted. The Grant Manager has the responsibility for approving Disbursement Requests. Project Costs incurred prior to the Eligible Start Date of this Agreement will not be reimbursed. City of Fresno Agreement No. D1712521 Page 17 of 28 (4) Grant Funds must be requested quarterly via Disbursement Request for eligible costs incurred during the reporting period of the corresponding Progress Report, describing the activities and expenditures for which the disbursement is being requested. Each Disbursement Request must be accompanied by a Progress Report. Failure to provide timely Disbursement Requests may result in such requests not being honored. (5) The Recipient agrees that it will not submit any Disbursement Requests that include any Project Costs until such cost has been incurred and is currently due and payable by the Recipient, although the actual payment of such cost by the Recipient is not required as a condition of Disbursement Request. Supporting documentation (e.g., receipts) must be submitted with each Disbursement Request as well as to support Match Funds claimed, if any. The amount requested for administration costs must include a calculation formula (i.e., hours or days worked times the hourly or daily rate =total amount claimed). Disbursement of Grant Funds will be made only after receipt of a complete, adequately supported, properly documented, and accurately addressed Disbursement Request. (6) The Recipient will not seek reimbursement of any Project Costs that have been reimbursed from other funding sources. (7) Recipient shall use Grant Funds within 30 days of receipt to reimburse contractors, vendors, and other Project Costs. Any interest earned on Grant Funds shall be reported to the State Water Board and will either be required to be returned to the State Water Board or deducted from future disbursements. In the event that the Recipient fails to disburse Grant Funds to contractors or vendors within thirty (30) days from receipt of the Grant Funds, the Recipient shall immediately return such Grant Funds to the State Water Board. Interest shall accrue on such Grant Funds from the date of disbursement through the date of mailing of Grant Funds to the State Water Board. If the Recipient held such Grant Funds in interest-bearing accounts, any interest earned on the Grant Funds shall also be due to the State Water Board. (8) Recipient shall submit its final Disbursement Request no later than the Final Disbursement Request Date specified herein unless prior approval is granted by the Division. If the Recipient fails to do so, then the undisbursed balance of this Agreement will be deobligated. (9) The Recipient agrees that it will not request a disbursement unless that cost is allowable, reasonable, and allocable. (10) Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or in any manner that is in violation of or in conflict with federal or state laws, policies, or regulations. (11) The Recipient agrees that it shall not be entitled to interest earned on undisbursed Grant Funds. (12) Any reimbursement for necessary travel and per diem shall be at rates not to exceed those set by the California Department of Human Resources. These rates may be found at httpJlwww.calhr.ca.govieinplayees/Pages/ti-avel-reimburseiiients.as2x. Reimbursement will be at the State travel and per diem amounts that are current as of the date costs are incurred by the Recipient. No travel outside the State of California shall be reimbursed unless prior written authorization is obtained from the Grant Manager. (13) The Recipient must include any other documents or requests required or allowed under this Agreement. City of Fresno Agreement No. D1712521 Page 18 of 28 B-10. Withholding of Disbursements and Material Violations (a) Notwithstanding any other provision of this Agreement, the Recipient agrees that the State Water Board may retain an amount equal to ten percent(10%) of the Grant Funds until Project Completion. Any retained amounts due to the Recipient will be promptly disbursed to the Recipient, without interest, upon Project Completion. (b) The State Water Board may withhold all or any portion of the funds provided for by this Agreement in the event that: (1) The Recipient has materially violated, or threatens to materially violate, any term, provision, condition, or commitment of this Agreement; or (2) The Recipient fails to maintain reasonable progress toward Project Completion. B-11. Remaining Balance In the event the Recipient does not request all of the Grant Funds encumbered under this Agreement, any remaining Grant Funds revert to the State. B-12. Fraud and Misuse of Public Funds All Disbursement Requests submitted shall be accurate and signed under penalty of perjury. Any and all Project Costs submitted pursuant to this Agreement shall only be for the tasks set forth herein. The Recipient shall not submit any Disbursement Request containing costs that are ineligible or have been reimbursed from other funding sources unless required and specifically noted as such (i.e., match costs). Any eligible Project Costs for which the Recipient is seeking reimbursement shall not be reimbursed from any other source. Double or multiple billing for time, services, or any other eligible Project Cost is illegal and constitutes fraud. Any suspected occurrences of fraud, forgery, embezzlement, theft, or any other misuse of public funds may result in suspension of disbursements of Grant Funds and/or termination of this Agreement requiring the repayment of all Grant Funds disbursed hereunder. Additionally, the Deputy Director of the Division may request an audit and refer the matter to the Attorney General's Office or the appropriate district attorney's office for criminal prosecution or the imposition of civil liability. (Civ. Code, §§ 1572-1573; Pen. Code, §§470, 489-490.) City of Fresno Agreement No. D1712521 Page 19 of 28 EXHIBIT C—STANDARD TERMS AND CONDITIONS C-1. Accounting and Auditing Standards The Recipient shall maintain GAAP-compliant Project accounts, including GAAP requirements relating to the reporting of infrastructure assets. C-2. Amendment No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral or written understanding or agreement not incorporated in this Agreement is binding on any of the parties. C-3. Assignability This Agreement is not assignable by the Recipient, either in whole or in part. C-4. Audit (a) The Division, at its option, may call for an audit of financial information relative to the Project, where the Division determines that an audit is desirable to assure program integrity or where such an audit becomes necessary because of state or federal requirements. Where such an audit is called for, the audit shall be performed by a certified public accountant independent of the Recipient and at the cost of the Recipient. The audit shall be in the form required by the Division. (b) Audit disallowances will be returned to the State Water Board. Failure to comply with audit disallowance provisions shall disqualify the Recipient from participating in State Water Board funding programs. C-5. [Reserved] C-6. [Reserved] C-7. Claims Any claim of the Recipient is limited to the rights, remedies, and claims procedures provided to the Recipient under this Agreement. C-8. Competitive Bidding Recipient shall adhere to any applicable state law or local ordinance for competitive bidding and applicable labor laws. If Recipient is a private entity, any construction contracts related in any way to the Project shall be let by competitive bid procedures that ensure award of such contracts to the lowest responsible bidders. Recipient shall not award a construction contract until a summary of bids and identification of the selected lowest responsible bidder is submitted to and approved in writing by the Division. Recipient must provide a full explanation if Recipient is proposing to award a construction contract to anyone other than the lowest responsible bidder. C-9. Compliance with Law, Regulations, etc. The Recipient agrees that it shall, at all times, comply with and require its contractor and subcontractors to comply with all applicable federal and state laws, rules, guidelines, regulations, and requirements. Without limitation of the foregoing, the Recipient agrees that, to the extent applicable, the Recipient shall: City of Fresno Agreement No. D1712521 Page 20 of 28 (a) Comply with the Guidelines; and (b) Comply with and require compliance with the list of state laws (cross-cutters) in Section C-32 of this Agreement. C-10. Conflict of Interest The Recipient certifies that its owners, officers, directors, agents, representatives, and employees are in compliance with applicable state and federal conflict of interest laws. C-11. Damages for Breach Affecting Tax-Exempt Status or Federal Compliance In the event that any breach of any of the provisions of this Agreement by the Recipient shall result in the loss of tax-exempt status for any bonds of the State or any subdivision or agency thereof, including bonds issued on behalf of the State Water Board, or if such breach shall result in an obligation on the part of the State or any subdivision or agency thereof to reimburse the federal government by reason of any arbitrage profits, the Recipient shall immediately reimburse the State or any subdivision or agency thereof in an amount equal to any damages paid by or loss incurred by the State or any subdivision or agency thereof due to such breach. In the event that any breach of any of the provisions of this Agreement by the Recipient shall result in the failure of Grant Funds to be used pursuant to the provisions of this Agreement, or if such breach shall result in an obligation on the part of the State or any subdivision or agency thereof to reimburse the federal government, the Recipient shall immediately reimburse the State or any subdivision or agency thereof in an amount equal to any damages paid by or loss incurred by the State or any subdivision or agency thereof due to such breach. C-12. Disputes (a) The Recipient may appeal a staff decision within 30 days to the Deputy Director of the Division or designee, for a final Division decision. The Recipient may appeal a final Division decision to the State Water Board within 30 days. The Office of the Chief Counsel of the State Water Board will prepare a summary of the dispute and make recommendations relative to its final resolution, which will be provided to the State Water Board's Executive Director and each State Water Board Member. Upon the motion of any State Water Board Member, the State Water Board will review and resolve the dispute in the manner determined by the State Water Board. Should the State Water Board determine not to review the final Division decision, this decision will represent a final agency action on the dispute. (b) This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the State Water Board, or any official or representative thereof, on any question of law. (c) Recipient shall continue with the responsibilities under this Agreement during any dispute. C-13. Financial Management System and Standards The Recipient agrees to comply with federal standards for financial management systems. The Recipient agrees that, at a minimum, its fiscal control and accounting procedures will be sufficient to permit preparation of reports required by the federal or state government and tracking of Project Costs to a level of expenditure adequate to establish that such Grant Funds have not been used in violation of federal or state law or the terms of this Agreement. C-14. Governing Law This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California. City of Fresno Agreement No. D1712521 Page 21 of 28 C-15. Income Restrictions The Recipient agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Recipient under this Agreement shall be paid by the Recipient to the State Water Board, to the extent that they are properly allocable to Project Costs for which the Recipient has been reimbursed by the State Water Board under this Agreement. C-16. Indemnification and State Reviews The parties agree that review or approval of Project documents by the State Water Board is for administrative purposes only, including conformity with application and eligibility criteria, and expressly not for the purposes of design defect review or construction feasibility, and does not relieve the Recipient of its responsibility to engage in proper planning. To the extent permitted by law, the Recipient agrees to indemnify, defend, and hold harmless the State Water Board, and its officers, employees, and agents (collectively, "Indemnified Persons"), against any loss or liability arising out of any claim or action brought against any Indemnified Persons from and against any and all losses, claims, damages, liabilities, or expenses, of every conceivable kind, character, and nature whatsoever arising out of, resulting from, or in any way connected with (1) the Project or the conditions, occupancy, use, possession, conduct, or management of, work done in or about, or the planning, design, acquisition, installation, or construction, of the Project or any part thereof; (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3)any violation of any applicable law, rule or regulation, any environmental law(including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the Toxic Substances Control Act, the Occupational Safety and Health Act, the Safe Drinking Water Act, the California Hazardous Waste Control Law, and California Water Code Section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the Project; or(4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Recipient for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement. To the fullest extent permitted by law, the Recipient agrees to pay and discharge any judgment or award entered or made against Indemnified Persons with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section shall survive the term of this Agreement and the discharge of the Recipient's Obligation hereunder. C-17. Independent Actor The Recipient, and its agents and employees, if any, in the performance of this Agreement, shall act in an independent capacity and not as officers, employees, or agents of the State Water Board. C-18. Integration This Agreement is the complete and final Agreement between the parties. C-19. Non-Discrimination Clause (a) During the performance of this Agreement, Recipient and its contractors and subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, sexual orientation, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, denial of family care leave, or genetic information, gender, gender identity, gender expression, or military and veteran status. City of Fresno Agreement No. D1712521 Page 22 of 28 (b) The Recipient, its contractors, and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. (c) The Recipient, its contractors, and subcontractors shall comply with the provisions of the Fair Employment and Housing Act and the applicable regulations promulgated thereunder. (Gov. Code, §12990, subds. (a)-(f) et seq.; Cal. Code Regs., tit. 2, § 7285 et seq.) Such regulations are incorporated into this Agreement by reference and made a part hereof as if set forth in full. (d) The Recipient, its contractors, and subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. (e) The Recipient shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement. C-20. No Third Party Rights The parties to this Agreement do not create rights in, or grant remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant, obligation, or undertaking established herein. C-21. [Reserved] C-22. Other Assistance If funding for Project Costs is made available to the Recipient from sources other than this Agreement, the Recipient shall notify the Division. The Recipient may retain such funding up to an amount which equals the Recipient's local share of Project Costs. To the extent allowed by requirements of other funding sources, excess funding shall be remitted to the State Water Board. C-23. Permits; Contracting; Disqualification The Recipient shall comply in all material respects with all applicable federal, state and local laws, rules and regulations. Recipient shall procure all permits, licenses and other authorizations necessary to accomplish the work contemplated in this Agreement, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work. For any work related to this Agreement, the Recipient shall not contract with any individual or organization on the State Water Board's List of Disqualified Businesses and Persons that is identified as debarred or suspended or otherwise excluded from or ineligible for participation in any work overseen, directed, funded, or administered by the State Water Board program for which funding under this Agreement is authorized. The State Water Board's List of Disqualified Businesses and Persons is located athttp-://www.waterboards.ca.-gov/water issues/programs/enforcement/fwaldbp.shtml. The Recipient shall not contract with any party who is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and Suspension." C-24. Public Records The Recipient acknowledges that, except for a subset of information regarding archaeological records, the Project records and locations are public records, including but not limited to all of the submissions accompanying the application, all of the documents incorporated by reference into this Agreement, and all reports, Disbursement Requests, and supporting documentation submitted hereunder. City of Fresno Agreement No. D1712521 Page 23 of 28 C-25. Prevailing Wages The Recipient agrees to be bound by all applicable provisions of State Labor Code regarding prevailing wages. The Recipient shall monitor all agreements subject to reimbursement from this Agreement to ensure that the prevailing wage provisions of the State Labor Code are being met. C-26. Professionals The Recipient agrees that only professionals with valid licenses in the State of California will be used to perform services under this Agreement where such services are called for. All technical reports required pursuant to this Agreement that involve planning, investigation, evaluation, design, or other work requiring interpretation and proper application of engineering, architecture, or geologic sciences shall be prepared by or under the direction of persons registered to practice in California. All technical reports must contain the statement of the qualifications of the responsible registered professional(s). Technical reports must bear the signature(s) and seal(s) of the registered professional(s) in a manner such that all work can be clearly attributed to the professional responsible for the work. C-27. Public Funding This Project is publicly funded. Any service provider or contractor with which the Recipient contracts must not have any role or relationship with the Recipient, that, in effect, substantially limits the Recipient's ability to exercise its rights, including cancellation rights, under the contract, based on all the facts and circumstances. C-28. Recipient's Responsibility for Work The Recipient shall be responsible for all work and for persons or entities engaged in work performed pursuant to this Agreement, including, but not limited to, contractors, subcontractors, suppliers, and providers of services. The Recipient shall be responsible for responding to any and all disputes arising out of its contracts for work on the Project. The State Water Board will not mediate disputes between the Recipient and any other entity concerning responsibility for performance of work. C-29. Records Without limitation of the requirement to maintain Project accounts in accordance with GAAP, the Recipient agrees to: (a) Establish an official file for the Project, which shall adequately document all significant actions relative to the Project. (b) Establish separate accounts, which will adequately and accurately depict all amounts received and expended on the Project, including all assistance funds received under this Agreement. (c) Establish separate accounts, which will adequately depict all income received which is attributable to the Project, specifically including any income attributable to assistance funds disbursed under this Agreement. (d) Establish an accounting system, which will accurately depict final total costs of the Project, including both direct and indirect costs. Indirect Costs are not eligible for funding under this Agreement. (e) Establish such accounts and maintain such records as may be necessary for the State to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations. City of Fresno Agreement No. D1712521 Page 24 of 28 (f) If Force Account is used by the Recipient for the Project, accounts will be established which reasonably document all employee hours charged to the Project and the associated tasks performed by each employee. Indirect Force Account costs are not eligible for funding. This prohibition applies to the Recipient and any subcontract or sub-agreement for work on the Project that will be reimbursed with Grant Funds pursuant to this Agreement. (Gov. Code§ 16727.) (g) Maintain separate books, records and other material relative to the Project. (h) Retain such books, records, and other material for itself and for each contractor or subcontractor who performed work on this Project for a minimum of thirty-six(36) years after Work Completion. The Recipient shall require that such books, records, and other material be subject at all reasonable times (at a minimum during normal business hours) to inspection, copying, and audit by the State Water Board, the Bureau of State Audits, the Internal Revenue Service, the Governor, or any authorized representatives of the aforementioned, and shall allow interviews during normal business hours of any employees who might reasonably have information related to such records. The Recipient agrees to include a similar right regarding audit, interviews, and records retention in any subcontract related to the performance of this Agreement. The provisions of this section shall survive the term of this Agreement. C-30. Related Litigation The Recipient is prohibited from using Grant Funds or Match Funds to pay costs associated with any litigation the Recipient pursues. Regardless of whether the Project or any eventual construction project is the subject of litigation, the Recipient agrees to complete the Project funded by the Agreement or to repay all Grant Funds plus interest to the State Water Board. C-31. Rights in Data The Recipient agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic work produced in the performance of this Agreement are subject to the rights of the State as set forth in this section. The State shall have the right to reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others to do so. If any such work is copyrightable, the Recipient may copyright the same, except that, as to any work which is copyrighted by the Recipient, the State reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, and use such work, or any part thereof, and to authorize others to do so, and to receive electronic copies from the Recipient upon request. C-32. State Cross-Cutter Compliance Recipient represents and certifies that, to the extent applicable, it is in compliance with the following conditions precedent and agrees that it will continue to maintain compliance during the term of this Agreement: (a) Agricultural Water Management Plan Consistency. A Recipient that is an agricultural water supplier as defined by section 10608.12 of the Water Code must comply with the Agricultural Water Management Planning Act. (Wat. Code, § 10800 et seq.) (b) California Environmental Quality Act(CEQA). Implementation and construction activities must comply with CEQA and potentially other environmental review requirements, including the National Environmental Policy Act(NEPA). Proceeding with work subject to CEQA and/or NEPA without environmental clearance by the State Water Board shall constitute a breach of a material provision of this Agreement. (c) Charter City Project Labor Requirements. (Labor Code, § 1782 and Pub. Contract Code, § 2503.) City of Fresno Agreement No. D1712521 Page 25 of 28 (1) Prevailing Wage Where Recipient is a charter city or a joint powers authority that includes a charter city, Recipient certifies that no charter provision nor ordinance authorizes a construction project contractor not to comply with the Labor Code's prevailing wage rate requirements, nor, within the prior two (2) years (starting from January 1, 2015, or after) has the city awarded a public works contract without requiring the contractor to comply with such wage rate requirements according to Labor Code section 1782. (2) Labor Agreements Where Recipient is a charter city or a joint powers authority that includes a charter city, Recipient certifies that no charter provision, initiative, or ordinance limits or constrains the city's authority or discretion to adopt, require, or utilize project labor agreements that include all the taxpayer protection antidiscrimination provisions of Public Contract Code section 2500 in construction projects, and that Recipient is accordingly eligible for state funding or financial assistance pursuant to Public Contract Code section 2503. (d) Contractor and Subcontractor Requirements. (Labor Code, §§ 1725.5 and 1771.1.) To bid for public works contracts, Recipient acknowledges that Recipient and Recipient's subcontractors must register with the Department of Industrial Relations. (e) Delta Plan Consistency Findings. (Wat. Code, §85225 and Cal. Code of Regulations, title 23, § 5002.) If Recipient is a state or local public agency and the proposed action is covered by the Delta Plan, Recipient will submit a certification of project consistency with the Delta Plan to the Delta Stewardship Council prior to undertaking the implementation/construction project associated with this Project. (f) Eminent Domain Prohibited. (Wat. Code, § 79711.) Where land acquisition is otherwise authorized under this Agreement, Grant Funds and Match Funds shall not be used to acquire land via eminent domain. (g) Governor's Infrastructure Plan. (Gov. Code, § 13100.) The Recipient shall ensure that the Project shall maintain consistency with section 13100 of the Government Code (five-year infrastructure plan). (h) Groundwater Monitoring. (Wat. Code, § 10920.) The Recipient shall comply with Water Code section 10920 et seq., which requires groundwater monitoring and reporting of groundwater elevations. (i) Remediation Costs Limited. (Wat. Code, § 79771.) Grant Funds shall not be used to pay any share of the costs of remediation recovered from parties responsible for the contamination of a groundwater storage aquifer, but may be used to pay costs that cannot be recovered from responsible parties. Recipients that have received Grant Funds for remediating groundwater storage aquifers shall exercise reasonable efforts to recover the costs of groundwater cleanup from the parties responsible for the contamination. Funds recovered from responsible parties may only be used to fund treatment and remediation activities. (j) State Water Board's Drought Emergency Water Conservation regulations. (Cal. Code of Regulations, Title 23, article 22.5.) The Recipient will include a discussion of its implementation in Progress Reports submitted pursuant to this Agreement. (k) SBx7-7: Sustainable Water Use and Demand Reduction (Wat. Code, § 10608 et seq.). SBx7-7 conditions the receipt of a water management grant or loan for urban water suppliers on achieving gallons per capita per day reduction targets with the end goal of a twenty percent (20%) City of Fresno Agreement No. D1712521 Page 26 of 28 reduction by 2020. Recipients that are urban water suppliers shall provide proof of compliance with SBx7-7. (1) Sustainable Groundwater Management Act(SGMA) Compliance. Wat. Code, § 10720-10737.8. To the extent required under SGMA, the Recipient shall comply with the following: (1) If, after July 1, 2017, the Project is or will be located in a non-adjudicated high-or medium- priority California Statewide Groundwater Elevation Monitoring (CASGEM) basin, the Recipient shall ensure that a Groundwater Sustainability Agency (GSA) has formed or an alternative has been submitted to DWR. (Wat. Code, § 10735.2 (a)(1).) (2) If, after January 31, 2020, the Project is or will be located in a non-adjudicated high-or medium CASGEM basin that is subject to critical conditions of overdraft, the Recipient shall ensure that the Project is consistent with an adopted Groundwater Sustainability Plan (GSP). (3) If, after January 31, 2022, the Project is or will be located in a non-adjudicated high-or medium CASGEM basin that is not subject to critical conditions of overdraft, the Recipient shall ensure that the Project is consistent with an adopted GSP. (m) Urban Water Demand Management. (Wat. Code, § 10631.5.) If Recipient is an "urban water supplier"as defined by Water Code section 10617, Recipient certifies that it is implementing water demand management measures approved by the Department of Water Resources. (n) Urban Water Management Planning Act. (Wat. Code, § 10610 et seq.). If Recipient is an "urban water supplier' as defined by Water Code section 10617, the Recipient certifies that it has submitted an Urban Water Management Plan that has been deemed complete by the Department of Water Resources and is in compliance with that plan. This shall constitute a condition precedent to this Agreement. (o) Urban Water Supplier. (Wat. Code, §§ 526 and 527.) If Recipient is an urban water supplier as defined by Water Code section 10617, it shall have complied and maintain compliance with sections 526 and 527 of the Water Code relating to installation of meters and volumetric charging. (p) Water Diverter. (Wat. Code, § 5103.) If Recipient is a water diverter, Recipient must maintain compliance by submitting monthly diversion reports to the Division of Water Rights of the State Water Board. (q) Water Quality Compliance. (Wat. Code, § 79707.) The Recipient shall ensure that the Project shall maintain consistency with Division 7 of the Water Code (commencing with section 13000) and Government Code section 13100. (r) Water Quality Monitoring. (Wat. Code, § 79704.) If water quality monitoring is required as part of the Project, the Recipient shall collect and report water quality monitoring data to the State Water Board in a manner that is compatible and consistent with surface water monitoring data systems or groundwater monitoring data systems administered by the State Water Board. (s) Wild and Scenic Rivers. (Wat. Code, § 79711.) The Recipient shall ensure that the Project will not have an adverse effect on the values upon which a wild and scenic river or any other river is afforded protections pursuant to the California Wild and Scenic Rivers Act or the federal Wild and Scenic Rivers Act. City of Fresno Agreement No. D1712521 Page 27 of 28 C-33. State Water Board Action; Costs and Attorney Fees The Recipient agrees that any remedy provided in this Agreement is in addition to and not in derogation of any other legal or equitable remedy available to the State Water Board as a result of breach of this Agreement by the Recipient, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by the State Water Board shall not preclude the State Water Board from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that each party shall bear its own costs and attorney fees. C-34. Termination; Immediate Repayment; Interest (a) This Agreement may be terminated at any time at the option of the State Water Board, upon violation by the Recipient of any material provision of this Agreement after such violation has been called to the attention of the Recipient and after failure of the Recipient to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the Division. E (b) In the event of such termination, the Recipient agrees, upon demand, to immediately repay to the State Water Board an amount equal to Grant Funds disbursed hereunder, accrued interest, penalty assessments, and additional payments. In the event of termination, interest shall accrue on all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the Recipient to the date all monies due have been received by the State Water Board. C-35. Timeliness Time is of the essence in this Agreement. C-36. Unenforceable Provision In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. C-37. [Reserved] C-38. Venue The State Water Board and the Recipient hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California. C-39. Waiver and Rights of the State Water Board Any waiver of rights by the State Water Board with respect to a default or other matter arising under the Agreement at any time shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State Water Board provided for in this Agreement are in addition to any other rights and remedies provided by law. City of Fresno Agreement No. D1712521 Page 28 of 28 EXHIBIT D—SPECIAL CONDITIONS Recipient acknowledges and agrees to the following special conditions: 1. Pursuant to Water Code section 79771 subdivision (c), during the term of the Agreement, the Recipient shall exercise reasonable efforts to recover the costs of groundwater cleanup from the parties responsible for the contamination. Any such funds recovered shall be used to fund treatment and remediation activities. If the Recipient recovers funds from any responsible parties, the Recipient shall immediately notify the Division. The amount of this Agreement may be reduced to reflect the recovered funds.